Banda v. John Deere

Background

Javier Banda was injured on August 22, 2017, when a 2011 John Deere 310J backhoe loader rolled or slid backward into a trench while Banda was inside it. Banda and his wife asserted product-liability claims against John Deere and Herc Rentals, alleging defective design and inadequate warnings.

The parties filed motions under Rule 702 of the Federal Rules of Evidence and the Daubert standard. Those rules require expert testimony to be helpful to the fact-finder, based on sufficient facts or data, supported by reliable methods, and reliably applied to the case.

Plaintiffs’ motions

Charles Mahla. Mahla, a defense rebuttal economist, calculated Banda’s past and future lost earnings and future medical costs. Plaintiffs challenged his use of work-life statistics involving Hispanic men and his assumption that Banda would continue using his current, less expensive prosthetic. At the hearing, plaintiffs withdrew their objection to the use of race in calculating work-life expectancy, so the court did not rule on that issue. The court held that the evidence about the less expensive prosthetic affected the weight of Mahla’s testimony rather than its admissibility. The Mahla Motion was denied.

Carol Hyland. Hyland, a defense vocational expert, opined that Banda was not necessarily unable to work and identified some jobs that might be possible. Plaintiffs argued that her opinions conflicted with vocational testing showing an IQ of 71. The court held that Hyland could rely on Banda’s work history to say that the testing might not provide a complete picture, but she could not testify that the testing was wrong. The Hyland Motion was denied.

Sam Iler. Iler, a workplace-safety expert disclosed by Herc, offered opinions about the safety practices of Banda, the backhoe operator, and Vulcan. The court allowed Iler to offer opinions about the standard of care, which included industry practices and manufacturer requirements, even though he had not identified every specific Occupational Safety and Health Administration regulation during his deposition. Iler could rely on an undisclosed regulation only if he identified it to plaintiffs within one week of the order, and he could address Occupational Safety and Health Administration regulation section 1592. He could not offer opinions about other Occupational Safety and Health Administration regulations.

The court barred Iler from relying on the online operator’s manual because he had not established that it applied to the specific backhoe involved. As to alarm fatigue, the court allowed Iler to testify narrowly that alarm fatigue is a well-known problem based on his industry experience and safety training. He could not testify about the problem’s magnitude, the circumstances in which it is more or less significant, or the contents of the online article he produced. The Iler Motion was granted in part and denied in part.

John Deere’s motion

John Deere sought to exclude testimony from Brian Doherty, Myles Kitchen, Mark Dimas, and Gerald Fulghum.

Brian Doherty. Doherty could not testify that the backhoe’s design should have included a backup alarm because the court found him unqualified to give design opinions. He could testify about what likely would have happened if the backhoe had had a backup alarm, including his opinion that Banda might have escaped injury. The court treated challenges to those opinions as concerns about weight rather than admissibility. The court did not address the challenged PowerPoint presentation because it was not provided until the hearing. The motion was granted in part and denied in part as to Doherty.

Myles Kitchen. Kitchen could testify about how the backhoe could be modified to add a backup alarm, an automatic parking brake, and a hill-assist feature, and how those features would work. The court held that the proposed modifications were sufficiently clear and capable of being tested. Kitchen could not testify that the missing features were “operational deficiencies” or that the features would have given Banda enough time to escape, because he lacked the necessary expertise for those opinions. In other respects, the requests to exclude his opinions were denied.

Mark Dimas. Dimas could not offer opinions that the backhoe should have had a backup alarm, hill assist, or automatic parking brake; that the lack of those features was a design defect; or that adding them was feasible. He could testify about how laborers use heavy equipment, what laborers expect from equipment, the applicable workplace standard of care, and whether the backhoe rolled rather than slid. He could not offer his opinion about perception-and-reaction time. Regarding the consumer-expectations test, he could testify about whether its elements were met but could not give the ultimate opinion that the backhoe was defective.

Gerald Fulghum. Fulghum could offer opinions at a conceptual level about whether the backhoe needed the safety features identified in his report, including a backup alarm, automatic parking brake, hill assist, and mechanical backup alarms. He could also address whether the elements of the risk-benefit and consumer-expectations tests were met, but he could not testify to the ultimate conclusion that the backhoe was defective. He could not offer his opinion that Banda would have avoided injury with a backup alarm because he was not qualified to analyze perception-and-reaction time.

Disposition

The court’s final order states that the Mahla and Hyland Motions were denied. The Iler Motion was granted in part and denied in part. John Deere’s motion concerning Doherty, Kitchen, Dimas, and Fulghum was granted in part and denied in part. The order addressed the admissibility and limits of expert testimony; it did not decide the underlying product-liability claims.